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Why the NBA lockout could be in a long, bitter dispute

Labor and law professor Michael LeRoy is an expert in collective bargaining.

Photo by L. Brian Stauffer

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Wearing a suit, not a uniform, Donald Fehr has been one of baseball's biggest players for nearly a quarter-century as executive director of the powerful Major League Baseball Players Association. Labor and law professor Michael LeRoy, an expert in collective bargaining and longtime Chicago Cubs fan, discusses Fehr's pending retirement in an interview with News Bureau Business & Law Editor Jan Dennis.

What do you think will be Donald Fehr's legacy as executive director of the Major League Baseball Players Association? What were his greatest achievements?

How many of us have seen our salaries or wages increase by a factor of 10 in the past 25 years? Not many. But this is Don Fehr's most significant legacy - raising the salaries of baseball players to stratospheric levels. Another way of stating this achievement: He succeeded in getting owners to share the huge wealth that baseball players produce. He has been something like Robin Hood, taking wealth from billionaire owners or firms and redistributing it to baseball players.

But Fehr has other legacies. He kept his union unified during a long strike and also during the steroid era. His counterpart in football, the late Gene Upshaw, had to deal with constant internal strife that bubbled over in public disputes.

When basketball players were locked-out in the (Michael) Jordan years, the players union had a serious union decertification campaign. The union was split between rich stars and journeymen players, whose economic interests were in direct conflict. Don Fehr has avoided these problems and pitfalls.

What were his greatest failures?

Fehr handled the baseball steroids controversy clumsily, reactively, and defensively. He will likely be perceived as a person who covered up for wrongdoers, or worse, was out of touch with the realities of the clubhouse. Much of this problem was not his making - for many years, the substances that are now banned were not prohibited, so at the time he really was not stonewalling to protect players.

But once the Mitchell Report came out, Fehr's reputation took a hit. (Former U.S. Sen.) George Mitchell himself was personally critical of Fehr in the report - an odd occurrence given that the report took a soft-glove and forgiving approach to past wrongdoers, but somehow took direct aim at Fehr. Really, how far could he cooperate with Mitchell without violating his legal duty to represent players?

To the best of our knowledge, Fehr did not use performance enhancers, nor did he encourage their use or profit from their use. But, again, he gets a lot of the direct blame in the Mitchell Report, while more culpable individuals got a free pass.

In a related but different vein, Fehr probably did not win friends in the Congress. His successor will probably have to deal with this lost trust and respect. The real problem is that Congress has the power to repeal baseball's antitrust exemption - totally or in pieces. This could unsettle the sport, with the bottom line being that owners and players might lose wealth and autonomy.

A more likely scenario is that baseball and other sports will become subject to federal drug-testing laws. This would take an important subject out of the hands of negotiators at the bargaining table, mandate testing and penalties, and even criminalize activities that are now only matters for internal discipline.

Fehr and his mentor, Marvin Miller, have led the players association for more than four decades. Will their philosophy continue if Fehr is succeeded by his longtime heir apparent, union general counsel Michael Weiner?

Marvin Miller took the players through three strikes. He was flamboyant, quotable, controversial and confrontational. In contrast, Donald Fehr took players through only one strike, albeit a long one. He tried to fight more battles in court or away from the bargaining table - for example, by winning a $280 million lawsuit over collusion by owners. Unlike Miller, Fehr was not a very flashy figure.

Michael Weiner has been Fehr's point man in legal disputes for many years, and will probably continue in Fehr's mold of trying to fight as many player battles in court or in arbitration rather than on picket lines. What Fehr and Weiner seem to have in common is the knack to pick fights they can win, and to fight these battles without embroiling their members to the point of risking their sport or livelihoods.

Neither man is known for brinksmanship. They are quite different from Richie Philips, the former head of the umpires union. Philips led his members into a disastrous mid-season "resignation" (read strike) that resulted in many umpires being permanently replaced - and out of a great job.

By contrast, Fehr and Weiner keep their members working, and they do not overplay their hands too often.